Delveccio v State of New York

[*1] Delveccio v State of New York 2006 NY Slip Op 52569(U) [14 Misc 3d 1230(A)] Decided on January 12, 2006 Ct Cl Minarik, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 26, 2007; it will not be published in the printed Official Reports.

Decided on January 12, 2006
Ct Cl

Jeffrey S. Delveccio, Claimant,

against

The State of New York [FN1],Defendant.

108246



For Claimant:

COSTELLO, COONEY & FEARON, LLP

DAVID S. GRASSO, ESQ.

For Defendant:

HON. ELIOT SPITZER

New York State Attorney General

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Renée Forgensi Minarik, J.

Claimant, Jeffrey S. Delveccio, filed a claim for damages against Defendant, the State of New York, on September 10, 2003. Claimant alleges that he sustained injuries as a result of Defendant's negligence when he slipped and fell on a snow- and ice-covered walkway at the State University of New York at Brockport ("SUNY") on February 24, 2003. I conducted a trial on this matter on August 8, 2005.

At the time of trial, Claimant was a 40 year old SUNY student and father of three, residing in Waterloo, New York. He testified that, on February 24, 2003, he arrived 15 minutes ahead of time for class and parked in the lot near the Tower of Fine Arts. He had parked in this location before and was familiar with the area. He described the weather conditions on the day of the incident as "frigid," "very cold" and "crisp." He testified that the parking area had hard-packed snow on it and that the sun was "glistening off" it. There was no blowing snow. Claimant stated he was wearing sneakers that were just two months old.

Claimant introduced six photographs of the area where he fell, taken approximately 1½ to [*2]2 weeks after the accident. He testified that they depicted approximately the same conditions as on the date of the accident. Exhibits 1 through 6 depict a snow-covered parking lot and sidewalk with some loose snow on top of hard-packed snow. Claimant had parked his car (Exh. 5) and walked toward the buildings and eventually came to a sidewalk (Exh. 1). The parking lot surface met the sidewalk at a "dip" installed for wheelchair access (Exh. 4). He testified he walked three to four steps and then his "feet came out from under" him. He described the impact from the fall as slipping then hitting his tailbone and bouncing to his knees. Claimant said once he was in the kneeling position, he could not move. He stated an elderly woman helped him lay down on his back and that he stayed in that position until an ambulance arrived on the scene. Claimant testified that he was on the ground for about 35 minutes from the time he fell until the ambulance arrived. While he was on the ground, Claimant did not notice any salt, halite or sand in the area where he fell.

Claimant had Jack Szyikowski of the SUNY Police Department testify. Officer Szyikowski completed the SUNY Report of Accident or Injury (Exh. 7) the very date of the accident. In Exhibit 7, he corroborated Claimant's testimony that the sidewalk was covered with hard-packed snow and ice, but noted that it had been "recently plowed clear of snow" (Exh. 7). He also testified that SUNY owns and operates snow removal equipment, as well as equipment to spread salt and halite.

Defendant called SUNY Facilities and Planning grounds supervisor Mark Hillman to the stand. He testified that he had oversight responsibilities for the motor pool and the grounds department. His duties encompassed "anything to do" with the campus grounds; from lining athletic fields to regular maintenance and snow removal. SUNY's student population is 6,800 students and the campus has an area of 3 million square feet (plus athletic fields) which includes 8 miles of roads, 20 miles of sidewalks, and 25 parking lots.

Mr. Hillman stated that SUNY has a written snow removal policy. The policy covers procedures for notification of the 12-person crew and actual snow removal as well as a priority list, that is, what parts of campus get attention first (Exh. C). At the top of the snow removal priority list is the clearing of the 8 miles of roads. On the list of 10 items, faculty/staff and commuter parking lots is number 6, followed by the academic building walks at number 7 (Exh. C, pp. 3 - 4). The actual procedure is to remove the surface snow then apply ice choppers and ice melting agents on any remaining ice. The policy envisions return trips to remove melted ice and slush "to the surface" (Exh. C, pp. 2 - 3). I note that the written policy states "Scraping down of roads and walks by equipment shall continue until all surfaces are free from packed snow and ice" (Exh. C, p.3).

Mr. Hillman testified that, during the period of February 21 - 24, 2003, he was actually present on campus on Friday, February 21, and Monday, February 24. He was consulted by telephone on Saturday, February 22, and Sunday, February 23, relying on the call-in lists to mobilize grounds staff during those two days. Mr. Hillman called in three grounds staff members on Saturday, February 22, and seven grounds staff members on Sunday, February 23 (Exh. D). A complete crew was called in on Monday, February 24 at 4:00 a.m. (Exh. B). He testified that a "normal" work day commenced at 6:00 a.m. and concluded at 2:30 p.m.

On cross-examination, Mr. Hillman testified that, typically, his grounds crew can clear a "couple inches" of snow in a regular work day and have the high priority locations cleared by 8:00 a.m. However, removing ice is more difficult. The ice melting agents break down small [*3]amounts of the ice at a time and his crews go back to such areas and remove the melted ice, but unless there are warm temperatures for a few consecutive days, they cannot get to the ground's surface immediately. Mr. Hillman stated that the ice melting agents do not work in extremely cold temperatures either. The process of ice removal is complicated by the fact that at any time about 4,000 students are walking around the campus packing down any loose snow and creating a thick base of hard-packed snow and ice. These same students also kick the ice melting agents off the sidewalks.

He acknowledged that the SUNY snow removal policy states that crews will make return trips to remove melted ice and slush, but he has no record of when, or if, that was done at the area of the accident on the date in question. He described the area around the Tower of Fine Arts Building (where Claimant was going the day of the accident) as a "moderate use" area that typically would get cleared within 2½ hours, after which the crews would be back with ice melting agents.

Both parties provided climate data for the days in question for Rochester, New York. I note that Mr. Hillman testified he relied on weather forecasts from Rochester and Buffalo for guidance. Data from both parties indicate that freezing rain commenced on February 22 and turned into snow the next day (Exh. A; Exh. 8). It appears that 3 inches of snow accumulated on Sunday, February 23 (Exh.8).

It is well established that "[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346 [citations omitted]) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506). However, the State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created this dangerous condition, or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (Goldman v Waldbaum, Inc., 297 AD2d 277; Dapp v Larson, 240 AD2d 918).

Liability for slip and fall on ice and/or snow must be considered in light of problems caused by winter conditions (Pappo v State of New York, 233 AD2d 379, 379-380). Claimant "must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality (citations omitted)" (Tobias v State of New York, Ct Cl, December 19, 2000 [Claim No. 96244], Patti, J., UID No.2000-013-520). The failure to remove ALL snow and ice from a sidewalk is not necessarily negligence unless the hazard was somehow increased by the process of the snow and ice removal itself (id.). In addition, Defendant is entitled to a reasonable amount of time at the conclusion of a storm or other weather event to take corrective action (see Boyko v Limowski, 223 AD2d 962; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769).

There is no dispute that hard-packed snow and ice existed on the sidewalk where Claimant fell. Inasmuch as the grounds crew had been working on snow removal from Saturday, [*4]February 22 at approximately 7:00 p.m. through Monday, February 24 commencing at 4:00 a.m. until well after the time of Claimant's accident (Exh. D), and Officer Szyikowski's testimony that the sidewalk had been recently plowed, I find that Defendant had constructive notice that the dangerous condition existed prior to Claimant's fall. But, did Defendant take reasonable steps to eliminate the snow and ice?

SUNY snow removal policy requires the application of ice melting agents after snow has been pushed back and/or removed or when freezing occurs. The policy notes that return trips are required to remove melted ice and slush (Exh. C, p. 2). It was not clear from the testimony what weather event(s) caused this particular condition. The accident report (Exh. 7) and Officer Szyikowski's testimony show that snow had been recently plowed so I conclude that some snowfall occurred. I reviewed Exhibit A, the February 2003 climatological data for Rochester, New York. Snowfall occurred on 19 of the 23 days preceding the accident. The average temperature rose above freezing only five times. The three days immediately preceding the accident began on February 21 with an average high of 36º followed by a 32º average day with rain, freezing rain and drizzle, snow (2 inches), ice pellets and freezing fog. On the date of the accident, February 24, the report shows snow (1.3 inches) and mist (Exh. A., p.1).

The weather data indicates that the total snowfall for February 2003 was 21.9 inches, of which only 1.3 inches fell after the accident (Exh. A). Mr. Hillman testified that icing agents do not work well in very low temperatures. The average high temperature in February 2003 was 28.3º while the average low was 13.4º. The condition of the sidewalk on the date of the accident, ordinarily and generally, would have been brought about by the weather conditions. I am troubled, however, by the uncontroverted testimony that no ice melting agents appeared to have been applied to the area. Mr. Hillman testified that snow removal began at 4:00 a.m., this accident occurred at approximately 9:00 a.m. While it would be unreasonable to expect that the ice and hard-packed snow would have been completely eradicated in this moderately traveled area, an indication of some attention was warranted. It appears from the testimony and evidence at trial that this condition existed for some time prior to the accident. The record is void of any remedial efforts on the part of Defendant. I find that Defendant was negligent (cf. Tobias v State of New York, Ct Cl, December 19, 2000 [Claim No. 96244], Patti, J., UID #2000-013-520).

In spite of the evidence of Defendant's negligence, Claimant was required to see that which is before him and which can be seen (Weigand v United Traction Co., 221 NY 39). Claimant testified he was familiar with this route and, despite the weather conditions, he wore sneakers. Although he may have had weather-appropriate outerwear, his footwear was inappropriate given the weather and the condition of the parking areas and sidewalks. I find Claimant was also negligent and must share responsibility for his injury.

I fix the Defendant's negligence at 50% and the Claimant's negligence at 50%.

Any motion upon which I previously reserved, or which were previously undecided, are denied.

The Chief Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Rochester, New York

January 12, 2006

Renée Forgensi Minarik

Judge of the Court of Claims Footnotes

Footnote 1:The caption has been amended sua sponte to reflect the only proper Defendant.